Cashing In On Business Losses

There’s an old saying that if life gives you lemons make lemonade. But what about lemon pie?

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Creamy Lemon Pie

We live in difficult economic times when many businesses are experiencing losses. The tax law allows people to turn these losses into cash refunds from the IRS. Has your business lost money this year? If it has read on and find out how you can get money back.

The first question to answer is if you truly have a loss from your business. Internal Revenue Code Section 172 defines business losses as the excess of allowed deductions over income. As many of you know, the tax laws differ from common sense in many (maybe most) cases. So, you could very well have a business loss on your internal bookkeeping income statement, but because of various limitations on deductions for depreciation, charity, business meals and other types of expenses you may not have a loss for tax purposes. Crazy but true.

The second question is whether you have “basis” to deduct your business loss. This gets into the issue of using Other People’s Money (such as bank loan) to finance your business. Here is a simplified example. Let’s say you start your new business with $100 of personal money. Subsequently the business loses $80. The IRS will say (in most cases) that you have “basis” to deduct the loss. No problem. But what if instead of losing $80 the business loses $150? Depending on how the loss was financed (i.e., where did the money come from that the business lost?) the IRS may say that you can only deduct what you are on the hook for.

The third and final question that must be answered to see if you can cash in on a business loss is how your business is organized. Are you a sole proprietor (IRS Schedule C), an S corporation (IRS Form 1120S), a C corporation (IRS Form 1120), a partnership or LLC (IRS Form 1065) or a farm (IRS Schedule F)? There are different rules and different forms for these different businesses. But forget about complexity for the moment. Let’s cut to the chase. What is the real point of cashing in on losses? What does it mean and how does it work?

So-called “net operating losses” in years when your business is hurting may be carried back to the good old days when your business made money. Thus, a nasty loss for this year 2011 can be carried back two years (in most cases) to 2009. And if your nasty loss relates to casualty or theft then you can carry the loss back to 2008. Taxes paid in those prior years will be refunded after giving effect to the loss you carry back.

Alternatively (if you are an optimist) you can wait for your money and elect to carry the loss forward and deduct it against future income. I generally don’t recommend this to my clients. A dollar today is worth more than a dollar tomorrow or next year. Why wait if you can cash in now?

The rules governing net operating losses are complex. If your tax preparer makes a mistake and files the wrong form or doesn’t take maximum advantage of the rules you are the one who will pay. In fact you can be certain that taxpayers always pay for not only their own taxes but also for every single mistake and missed opportunity made by their accountants. Get it right the first time! Being radically correct and profoundly right is boring when the subject is mowing the lawn and thrilling when the subject is money.

By the way, you may have noticed that I’ve said nothing at all about getting refunds back from the State of Maine. This is not an oversight. Maine doesn’t allow loss carrybacks. For that matter they have abolished (for now) loss carry forwards too!

LEGAL DISCLAIMER